Despite the recent interest in adopting HTML5's video tag, there is still one major problem: there is no mandated standard video codec for the video tag. The two main contestants are the proprietary and patended h264, and the open and free Theora. In a comment on an LWN.net article about this problematic situation, LWN reader Trelane posted an email exchange he had with MPEG-LA, which should further cement Theora as the obvious choice.

With H.264 you know how much you will have to pay. With Theora, there is always the risk that some obscure company attack you for patent violation. Since Theora is not developed and marketed by a large company, you will be on your own to pay advocates. In the case of H.264, MPEG-LA would probably take care of the issue, because they would want to continue selling licenses.

So it's not plain stupid... it's just a choice. Do you want to pay a known fee, or to gamble? It's not because something is open, that some part of it has not been patented earlier. The only real solution is to ban software patents

There is the point, as has already been mentioned more than once on this thread, that Theora is based on the VP3 codec, and that Xiph.org have obtained an irrevocable royalty-free license for the VP3 patents so that they can develop and distribute Theora.

You read it right ... Theora itself is based on patented technology. On2 are the owners of that patent.

The final drafting work on the first version of the standard was completed in May 2003.

So, if the USPTO is correct, and the technology they awarded patent(s) for in h264 was indeed new and innovative technology, then VP3 and hence Theora does not use any technology in h264.

Also, if the USPTO is correct, the VP3 was new and innovative technology some time before 2001. Patent trolls are going to have a hard time attacking it.

If the USPTO is incorrect, and they have granted a patent firstly to VP3 and then over two years later a patent for the same technology to h264, then that would be a "my bad" for the USPTO ... but the winning patent would be the earlier one, not the more recent one.

Hence it is more likely in a patent war that Theora/VP3 would prevail over h264 rather than the other way around, as many people apparently mistakenly imagine.